HomeMy WebLinkAboutContract 54057 o.
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CSC No. 54057
TEMPORARY LICENSE AGREEMENT
This Temporary License Agreement("Agreement") is entered into by and between the City of
Fort Worth, Texas, a home-rule municipal corporation of the State of Texas ("City"), and Union Pacific
Railroad Company,a Delaware corporation("Company").
WHEREAS,the City owns a certain piece of property known as Echo Lake Park,located at 1000
Echo Lake Drive,Fort Worth,TX 76110(the"Park");and
WHEREAS, the Company desires to gain access over and through the Park for the purposes of
performing survey work only; and
WHEREAS,the City has reviewed the Company's plans and agrees to grant the Company access
over and through the Park in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreement contained herein, City
and Company agree as follows:
1. License Granted. In accordance with the terms and conditions of this Agreement, City hereby
grants to the Company a non-exclusive license to use a portion of the Park as more accurately
depicted in Exhibit A(the"Licensed Premises"),which is attached hereto and incorporated herein
for all purposes.
2. Term. The term of this Agreement shall be for 30 consecutive days ("License Period"),
commencing upon execution of this Agreement by City("Commencement Date") and expiring at
11:59 P.M. on the 30th day following the Commencement Date
3. License Fee. City and Company expressly agree and stipulate that this Agreement is based on
valuable consideration and an exchange of promises that will be independently beneficial to both
parties. Both parties agree as a condition precedent to executing this Agreement that the
consideration is valuable and sufficient and that neither party shall be able to assert otherwise in
the event of litigation.Nothing herein shall constitute an obligation of City funds. City shall not
owe any amount of money for any reason whatsoever to the Company for services rendered in
connection with this Agreement. City shall not be liable nor owe any payment, fee, cost,penalty,
or money for any other reason whatsoever to Company.
4. Use of the Licensed Premises. Company may use the Licensed Premises for access and equipment
space necessary for the performance of surveying,and for no other purposes.
FOFFICIA RECORD
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5. Termination. The City may terminate this Agreement, without cause, upon five (5) days written
notice to the Company or immediately upon any breach of this Agreement by the Company.
6. Acceptance of Licensed Premises. Company takes all portions of the Licensed Premises and all
appurtenances in "'AS IS" condition without any express or implied warranty on the part of the
City.Company accepts the Licensed Premises in their present condition,finds them suitable for the
purposes intended, and further acknowledges that Company is thoroughly familiar with such
condition by reason of personal inspection and does not rely on any representations by the City as
to the condition of the Licensed Premises or their suitability for the purposes intended. Company
accepts the Licensed Premises subject to any and all previously recorded easements that may have
been granted on,along,over,under,or across said property,and releases the City from any and all
damages, claims for damages, loss, or liabilities that may be caused to invitees, licensees,
contractors, or trespassers by reason of the exercise of such rights or privileges granted in said
easements. Company's taking possession of the Licensed Premises shall be conclusive evidence
that: (a)the Licensed Premises are suitable for the purposes and uses for which same are licensed;
and (b) the Company waives any and all defects in and to the Licensed Premises and all the
appurtenances thereto.
7. Use not Exclusive. This Agreement and all rights granted to Company herein are strictly non-
exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and
other authorizations for use of the Licensed Premises to other persons and entities as the City deems
appropriate in accordance with applicable law; provided, however, that in granting subsequent
authorization for use, the City will not allow a use that will unreasonably interfere with the
Company's use of the Licensed Premises as provided herein. This Agreement does not establish
any priority for the use of the Licensed Premises by Company or by any present or future licensees
or other permit holders. In the event of any dispute as to the priority of use of the Licensed
Premises, the first priority shall be to the public generally, the second priority to the City in the
performance of its various functions,and thereafter,as between licensees and other permit holders,
as determined by the City in the exercise of its powers.
8. Liability. Company covenants and agrees to release City, its officers, agents, representatives,
servants,and employees,from and against any and all claims or suits for property damage,personal
injury, or any other type of loss or adverse consequence related in any way to the existence of this
Agreement or the use and occupancy of the Licensed Premises,except to the extent such claims or
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suits for property damage, personal injury, or other loss or adverse consequence arises from or is
caused by the City's gross negligence or willful misconduct. Furthermore, City shall not be liable
to Company for any damage or theft of Company's equipment, facilities,or other contents,except
for such damage or theft arising from the City's gross negligence or willful misconduct.
9. Public Safety. Company shall be solely responsible for initiating,maintaining, and supervising all
safety precautions and programs in connection with Company's use of the Licensed Premises.
10. Restoration of the Licensed Premises. Company agrees that Company shall repair and restore the
Licensed Premises to the same condition than the Licensed Premises was in immediately prior to
the execution of this Agreement to the extent any damage is caused by Company or Company's
contractors during Company's use of the Licensed Premises during the License Period. Any such
restoration must be conducted in accordance with the standards set forth in Exhibit B, which is
attached hereto and incorporated herein for all purposes.
11. Minimizing Impact to Vegetation. Company shall not cut or remove any trees on the Licensed
Premises unless otherwise specifically permitted by the City.If any tree within the Park is damaged
in connection with Company's use of the Licensed Premises as described herein,Company agrees
to undertake remediation efforts,including paying of remediation costs,in accordance with Exhibit
C,which is attached hereto and incorporated herein for all purposes.
12. Intentionally Omitted.
13. Protection of the Environment.
a. Company hereby represents and warrants that it shall not knowingly,nor permit any third
party to, use, handle, or store any Hazardous Materials on, under, over, or about Park or
the Licensed Premises in violation of any applicable laws, except that the Company may,
in compliance with applicable environmental laws and the terms of this paragraph,use and
store Hazardous Materials in such amounts and types that are commonly used in connection
with the uses permitted herein, provided, however, that Company specifically agrees to
remove any and all such Hazardous Materials on or before the final day of the License
Period. Company shall not introduce,use, generate, store,accept, or dispose of on,under,
or about, transport across, or permit to exist on the Licensed Premises or the Park any
"treatment, storage or disposal facility"or"underground storage tank," as those terms are
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defined under applicable environmental laws. For purposes of this Permit, "Hazardous
Materials"shall mean potentially dangerous hazardous wastes,toxic substances,or related
materials, including, but not limited to, pollutants; asbestos; polychlorinated biphenyl
(PCB);petroleum or other fuels(including crude oil or any fraction or derivative thereof);
underground storage tanks, and substances considered hazardous, toxic, or the equivalent
pursuant to applicable laws. Any Hazardous Materials used by the Company on the
Licensed Premises shall be posted on site and a list shall be given to City.
b. Company shall take commercially reasonable steps to avoid creating or aggravating any
condition at the Park or the Licensed Premises that could present a threat to human health
or to the environment.
14. INDEMNIFICATION. COMPANY AGREES TO AND DOES HEREBY DEFEND,
INDEMNIFY AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AGENTS,
REPRESENTATIVES, AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS,
AND PERSONAL INJURY,INCLUDING,BUT NOT LIMITED TO,DEATH,THAT MAY
RELATE TO,ARISE OUT OF OR BE OCCASIONED BY(i)COMPANY'S USE OF THE
LICENSED PREMISES AND THE PARK, (ii) COMPANY'S BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT, OR (iii) ANY ACT OR OMISSION
OF COMPANY OR ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES,
CONTRACTORS, AND SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR
THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, EXCEPT
TO THE EXTENT SUCH CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES
ARISE FROM OR ARE CAUSED BY THE CITY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
15. Limitation on Use. There shall be no equipment on the Licensed Premises within seventy-two(72)
hours of a rain event. The Company shall obtain the written approval of the Director of all heavy
equipment that will be used in the Licensed Premises and Company shall not use any heavy
equipment in the Licensed Premises that has not been approved by the Director.
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16. Compliance with Laws. Company shall, at its own cost and expense, comply with all applicable
laws,including,but not limited to,existing zoning ordinances,governmental rules and regulations
enacted or promulgated by any governmental authority and shall promptly execute and fulfill all
orders and requirements imposed by such governmental entities for the correction,prevention and
abatement of nuisances in or upon or connected with said premises because of Company's use
thereof.
17. Insurance. Company confirms and acknowledges that Company is self-insured, and that Company
will self-insure all risks associated with this Agreement.
18. Prohibition Against Liens. Company shall not do any act or make any contract that may be
purported to create or be the foundation of any lien on or any interest in the Licensed Premises.
Any such act, contract, or lien attempted to be created shall be void. Should any purported lien on
the Licensed Premises be created or filed, the Company shall, at its sole expense, liquidate and
discharge same within thirty(30)business days after notice from the City to do so.
19. Notice. All notices required or permitted under this Agreement shall be conclusively determined
to have been delivered when(i)hand-delivered to the other party, its agent, employee, servant, or
representative, or (ii) received by the other party by reliable overnight courier or United States
Mail,postage prepaid,return receipt requested,at the address stated below or to such other address
as one party may from time to time notify the other in writing.
To THE CITY: To COMPANY:
Richard Zavala Union Pacific Railroad Company
Director Attn: Kris Anderson,Manager-Acquisitions
Park and Recreation Department 1400 Douglas Street,MS 1690
City of Fort Worth Omaha,Nebraska 68179
4200 South Freeway, Suite 2200
Fort Worth,Texas 76115
With a copy to:
Department of Law
City of Fort Worth
Attn: City Attorney
200 Texas Street
Fort Worth,Texas 76102
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20. Force Majeure. If either party is unable, either in whole or part,to fulfill its obligations under this
Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public
enemies; wars; blockades; insurrections; riots; epidemics; pandemics; public health crises;
earthquakes; fires; floods; restraints or prohibitions by any court,board, department, commission,
or agency of the United States or of any state; declaration of a state of disaster or of emergency by
the federal, state, county, or City government in accordance with applicable law; issuance of an
Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland
Security or any equivalent alert system that may be instituted by any agency of the United States;
any arrests and restraints;civil disturbances;or explosions;or some other reason beyond the party's
reasonable control(collectively,"Force Majeure Event"),the obligations so affected by such Force
Majeure Event will be suspended only during the continuance of such event. If a Force Majeure
Event occurs,the City may, in its sole discretion, close or postpone the opening of its community
centers, parks, or other City-owned and operated properties and facilities in the interest of public
safety and operate them as the City sees fit.
21. Independent Contractor. It is expressly understood and agreed that Company shall operate as
independent entity in each and every respect hereunder and not as an agent, representative, or
employee of the City. Company shall have the exclusive control and the exclusive right to control
all details and day-to-day operations and activities relative to operation of the Company. Company
acknowledges that the doctrine of respondent superior shall not apply as between the City and
Company, its officers, agents, servants, employees, contractors, subcontractors, licenses, and
invitees.Nothing contained in this Permit shall be construed as the creation of a partnership or joint
enterprise between the City and Company.
22. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas. If any action,whether real or asserted,at law or in equity,arises on
the basis of any provision of this Agreement,venue for such action shall lie in state courts located
in Tarrant County, Texas or the United States District Court for the Northern District of Texas -
Fort Worth Division.
23. BindingEffect.ffect. The terms and provisions of this Agreement shall inure to the benefit of and be
binding upon City and Company and their respective successors and assigns and shall be covenants
running with the land.
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24. Entire Agreement. This Agreement contains all of the agreements between the parties respecting
the subject matter hereof, and no prior representations or statements, verbal or written, have been
made modifying,adding to, or changing the terms of this instrument.
25. No Waiver of Immunity. Nothing herein shall be deemed to limit or waive the sovereign or
governmental immunity of City or Company.
26. Assignment. This Agreement, in whole or in part, is not assignable by either party, without the
express written consent of the other party. Any attempt to assign this Agreement without the
required consent is void and without force and effect.
[SIGNATURE ON FOLLOWING PAGE]
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By executing this Agreement, Company agrees to and accepts the terms, conditions and provision
contained herein.
CITY OF FORT WORTH: UNION PACIFIC RAILROAD COMPANY:
Ava 61-"k S-fe✓e Sand
By:david Creek(Jun 23,202012:06 CDT) By: Steve Sand(Jun 23,2020 IL-49 CDT)
David Creek* Name: Steve Sand
Assistant Director Title: Director-Acquisitions
Park and Recreation Department
Date: Jun 23,2020 Date: Jun 23, 2020
*David Creek has been delegated the proper authority to execute this document on behalf of the City
pursuant to an Interoffice Memorandum from the City Manager dated May 6,2019.
APPROVED AS TO FORM
AND LEGALITY:
Maf l-Murray
Matt Murray(Jun 23.20201216 CDT)
Matt Murray
Assistant City Attorney
No M&C required., ;,,,
Ordinance No. 24161-04-20i {
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ATTESTED BY: f''�'`
City Secretary R'-
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Xy
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible for the monitoring and administration of this
contract,including ensuring all performance and reporting requirements.
By: ChrMna Mwn(Jun 23,2020 IL-59 CDT)
Name: Christina Moon
Title: Park Planner
rOFFIC9AL C�EDRDu SECRIE FARMTemporary License Agreement—Echo Lake Park O rH 8 of 14
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Exhibit B
Restoration Standards
SECTION 32 92 13.2
SODDING
PART1- GENERAL
1.1 SUMMARY
A.Section Includes:
1. Furnishing and installing grass sod.
B.Related Standard City Specification Sections include, but are not necessarily limited to:
1. Section 32 91 19—Topsoil
2. Section 32 84 23 -Irrigation
1.6 INFORMATIONAL SUBMITTALS
A. Certificates and Samples
1. Certificates and specifications of sod,fertilizer, compost, soil amendments or
other materials as requested by the City.
1.10 DELIVERY, STORAGE,AND HANDLING
A.Block Sod
1. Protect from exposure to wind, sun and freezing.
2. Keep stacked sod moist consistently throughout stack.
3. Sod upon delivery shall be inspected by City provision of certificate from vender
to be provided to City indicating sod free of all weeds.
4. Harvesting and planting operations shall be coordinated with not more than forty-
eight hours elapsing between harvesting and placement,rolling and tamping, and
watering of sod
1.11 FIELD [SITE] CONDITIONS
A. Grading of site and installation of topsoil must be approved by City prior to application
of sod
PART 2 - PRODUCTS
2.1 MATERIALS AND EQUIPMENT
A.Materials
1. Block Sod
a. Sod Varieties
1) Cynodon dactylon `TIF419' or Cynodon dactylon `TIFWAY'
2) OR an approved Zoysia grass
b. Sod must contain stolons,leaf blades,rhizomes and roots.
c. Sod shall be alive,healthy and free of insects, disease, stones,undesirable
foreign materials and weeds and grasses deleterious to its growth or which
might affect its subsistence or hardiness when transplanted.
d. Minimum sod thickness: 1"inch minimum.
e. Maximum grass height: 2 inches
f. Sod shall have been produced on growing beds of clay or clay loam topsoil.
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RESTORATION-SOD
Page 2of3
g. Sod must not be harvested or planted when its moisture condition is so
excessively wet or dry that its survival will be affected.
h. If sod is stacked,it shall be kept moist and shall be stacked roots to roots and
grass to grass.
i. Acceptable growing beds
1) Bermuda grasses and zoysia grasses: sand or sandy loam soils
j. Broken or torn sod or sod with uneven ends shall be rejected.
k. Temporary Erosion Control Seed
1) Consist of the sowing of cool season plant sod.
2. Topsoil: See Section 32 91 19.
3. Water: clean and free of industrial wastes or other substances harmful to the
germination of the seed or to the growth of the vegetation.
2.2 ACCESSORIES
a. Sod pins
1) Metal
2) Wood pegs.
PART 3- EXECUTION
3.1 EXAMINATION
A.Sod shall be inspected by City upon delivery.
B.Contractor must coordinate inspection 72 hours prior to cutting of sod and delivery
3.3 PREPARATION
A.Surface Preparation:clear surface of all material including:
1. Scarify subgrade to a depth of 2-inches before depositing the required topsoil.For
simple row repair only scarify to 1-inch.
2. Stumps, stones, and other objects larger than one inch.
3. Roots,brush,wire,stakes,etc.
4. Any objects that may interfere with planting sod or maintenance.
B.Cleaning
1. Soil shall be further prepared by the removal of debris,building materials,rubbish,
weeds, and rock 1-inch and greater.
C.Fine Grading:
1. After tillage and clearing, all areas to be planted shall be leveled,fine graded, and a
weighted spike and harrow or float drag. The required shall be the elimination of
ruts, depressions,humps, and objectionable soil clods.This shall be the final soil
preparation step to be completed prior to inspection before planting.
2. Areas near trees: Do not till inside dripline of trees or over exposed roots
3.4 INSTALLATION
A. Block Sodding
1. General
a. Do not lay sod when ground is frozen.
b. Over-seeding with annual rye is acceptable from November 1 until February 1.
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RESTORATION-SOD
Page 3 of 3
B. Installation
1. Plant sod specified after the area has been inspected and accepted by City for
planting.
2. Till 2" of subgrade and place 3" of topsoil on areas to receive sod or as directed
by City.
3. Sod to be laid parallel to the contours in areas as specified. Sod to be laid
perpendicular to slopes greater than 3:1.
4. Use care to retain native soil on the roots of the sod during the process of
excavating,hauling and planting.
5. Keep sod material moist from the time it is dug until planted.
6. Fill in slumped areas due to watering to keep sod moist.
7. Place sod so that the entire area designated for sodding is covered with no gaps
or overlapping material.
8. Fill voids left in the solid sodding with additional sod and tamp.
9. Roll and tamp sod so that sod is in complete contact with topsoil at a uniform
slope. By pedestrian mechanical process(no motorized vehicles/equipment)
10.Peg sod with wooden pegs(or wire staple)driven through the sod block to the
firm earth in areas that may slide due to the height or slope of the surface or
nature of the soil.
C. Watering and Finishing
1. Thoroughly water sod immediately after placed and tamped and rolled.
2. Generally, as recommended by the vendor. Water source shall be clean and free
of industrial waste or other substances harmful to the germination of the seed or
growth of the vegetation.
END OF SECTION
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Exhibit C
Tree Protection
DAMAGE TO CITY TREES
NO PRUNING OF ANY CITY TREE SHALL BE PERMITTED, UNLESS SPECIFIED
OTHERWISE IN THESE SPECIFICATIONS. Severe damage to trees will result in replacement or
compensation of trees by the COMPANY. Failure to replace damaged trees shall be considered a
breach of contract and COMPANY shall be assessed for damages. Slight or moderate damage to trees
will result in assessment of damages.
ASSESSMENT OF DAMAGES TO TREES
1.1. Company will check trees in the Licensed Premises before contract work begins, any
damage will be noted and reported to the Director or his designee.
1.2. The Director, or his designee, may conduct random checks of the trees during the License
Period.
1.3. A check of all trees may be made at the end of the License Period. The City Forester,
Director or his designee, and Company will attend the inspection.
1.4. Damages shall be documented by memo to the City Forester with copy to contract file and
the Company.
1.5. Company may have the option of replacement or payment for severely damaged trees at a
location to be designated by the Parks and Recreation Department. Replacement shall be
made on caliper inch per caliper inch basis with a minimum size of replacement tree of 2"
in caliper for trees damaged or removed less than 30"diameter at breast height(DBH) and
2"per inch on trees 30" DBH or greater. Company shall be responsible for any planting,
watering, mulching and maintenance of replacement trees for a period of not less than 2
years. Company shall compensate the City at a rate of$200 per caliper inch for any tree
that does not survive the 2 year establishment period.
1.6. Slight Damage shall be defined as damage,in the opinion of the City Forester that may heal.
Examples include, but are not limited to, scaring of the trunk into the cambial layer %2"to
2" in width but less than 1/3 trunk circumference or breaking of limbs less than 2" in
diameter or limbs less than 1/3 trunk caliper, whichever is less. Slight damage shall also
include removal or lying down of protective tree fencing prior to the end of construction,
storing equipment or supplies within the critical root zone (CRZ), or disposing of paint or
concrete within the CRZ but not closer to the trunk than 50% radius of the CRZ. Slight
damage to trees shall be assessed at a rate of$100.00 for each instance. For each day that
tree fencing is not properly placed, equipment or supplies are stored within CRZ, or fill is
stored within the CRZ, shall be considered one instance.
1.7. Moderate damage shall be defined as damage, in the opinion of the City Forester, that
contributes to the poor health and reduced longevity of the tree, and examples include,but
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are not limited to, scaring of the trunk into the cambial layer greater than 2"but less than
1/3 of the trunk circumference or breaking of limbs more than 2"in diameter but less than
1/3 trunk caliper. Moderate damage shall also include compaction of soil,grading or filling
in 20%of the CRZ on one of four sides but outside the 50%radius of the CRZ,or disposing
of paint or concrete within 50%radius of the CRZ. Moderate damages shall be calculated
at a rate of%2 the assessed value of the tree per each instance of damage.
1.8. Severe damage or removal of trees is subject to a penalty of$200 per diameter inch of trees
removed or damaged for trees less than 30"DBH and $400 per diameter inch of trees 30"
DBH or greater. Severe damage or removal shall include, but is not limited to, scaring of
the trunk to the cambial layer greater than 1/3 the trunk circumference,uprooting or causing
a tree to lean, or damage to a scaffolding branch or branch greater than 1/3 of trunk caliper.
Severe damage shall also include compaction of soil, grading or filling more than 20% of
the CRZ, or within 50% radius of the CRZ or on more than one of 4 sides. Cutting 1/3 of
the buttress roots within 3 times the distance of the DBH of the trunk, or cutting 4 roots 4"
or greater in diameter within 4' of the trunk shall also be considered severe damage.
1.9. Branches shall be measured at the point of attachment or at the lateral to which the branch
would be pruned back to according to ANSI standards. Trees caliper shall be measured
according to accepted industry standards. Trees greater than 6"in caliper shall be measured
using DBH. Trees that must be removed due to damage caused by Company shall be
removed by the Parks and Recreation Department's Forestry Section Tree Removal
Contractor at Company's expense.
1.10 All damages shall be paid to the City Tree Fund. Failure to replace or pay for damaged
trees shall result in a breach of contract and Company will be automatically assessed
damages. Damages as described herein shall be deducted from payments otherwise due to
Company.
1.11 Remediation costs assessed hereunder constitute contractual damages intended to
compensate the City, as property owner, and have no bearing on whether or to what extent
any fines may be due under the Urban Forestry Ordinance of the Fort Worth Zoning
Ordinance.
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